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Phone Records Case Analysis

It would seem that, after 20 years, the State’s evasion of paying for terminating AMA reports will come to an end, and that the State will subpoena less reports, as a result.

The court observed, "Public officials in Wisconsin not only refuse to pay but also make a disproportionately high number of demands compared with law-enforcement officials in other states. That Wisconsin’s prosecutors treat terminating AMA reports as free doubtless explains this fact."

The ubiquity of cellphones (and the ease and low cost for which originating (as opposed to terminating) AMA reports can be generated), make this prospect less burdensome than it would have been had this decision been issued years ago. Cellphone companies "maintain" this information as a matter of course, and do not require hours of human and computer time to generate such reports.

Should further disputes arise, however, the parties have little guidance from other courts to guide them. Besides this marathon litigation, the statute has produced only one published decision nationwide, Michi-gan Bell Telephone Co. v. DEA, 693 F.Supp.542 (E.D.Mich.1988).

Should courts follow the holding in that decision, the State will find that there is no efficient means of setting rates for compensation, save to negotiate a uniform rate. Inability to reach such an agreement is not grounds for the judiciary to intervene and set a rate.

In Michigan Bell, the phone company sought a judicial order, setting a uniform compensation rate for requests, but the court held that neither it, nor any state court, could issue such an order.

The court wrote, "Plaintiff essentially seeks to have this court assess the costs of compliance and make the essentially legislative judgment delegated by Congress to the Department of Justice. The ECPA does not provide for judicial review of this magnitude…" Michigan Bell, 693 F.Supp., at 545.

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The court continued, "The ECPA envisions limited judicial review of disputes over reimbursement. … judicial intervention is limited to challenges made before compliance with a request or after compliance before the court hearing the criminal prosecution." Id.

The court acknowledged, "adjudication of isolated disputes over the burdensomeness of any particular request will inevitably fail to achieve the global judgment of costs and community responsibility which Congress clearly intended to be struck in sec. 2706."

Nevertheless, the court concluded, "That being said, there is no indication that Congress either intended or expected that the federal courts would undertake that essentially legislative responsibility. Rather, sec. 2706 reflects an understanding that the court’s role would be limited to the adjudication of particular disputes connected with isolated requests for information."

While the court spoke only of "federal courts," the reasoning is equally applicable to state courts. If the State and Ameritech do not reach a uniform rate for compensation, the only alternative is piecemeal litigation in the circuit court presiding over the case in which the subpoena is issued.

– David Ziemer

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David Ziemer can be reached by email.

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